Commonwealth v. Herman, 74 MAP 2016

CourtUnited States State Supreme Court of Pennsylvania
Citation161 A.3d 194
Docket NumberNo. 74 MAP 2016,74 MAP 2016
Parties COMMONWEALTH of Pennsylvania, Appellant v. Joey Wayne HERMAN, Appellee
Decision Date25 May 2017

161 A.3d 194

COMMONWEALTH of Pennsylvania, Appellant
Joey Wayne HERMAN, Appellee

No. 74 MAP 2016

Supreme Court of Pennsylvania.

Argued: December 7, 2016
Decided: May 25, 2017

Thomas L. Kearney III, Esq., James Edward Zamkotowicz, Esq., York County District Attorney's Office, for Commonwealth of Pennsylvania, Appellant.

Brian Vincent Manchester, Esq., Manchester & Associates, for Joey Wayne Herman, Appellee.




This is a direct appeal by the Commonwealth in a case involving Appellee's alleged possession and delivery of a chemical compound claimed to be either a controlled substance or a designer drug. A central issue is whether the portions of the Controlled Substance, Drug, Device and Cosmetic Act under which Appellee was charged—relating to "analogues" of scheduled controlled substances, as well as "substantially similar" designer drugs—are unconstitutionally vague.

I. Background

At all relevant times, Appellee owned and operated a smoke shop in York County. On April 17, May 30, and July 11, 2013, undercover police officers entered the shop and purchased small packets of substances having brand names such as "Winter Haze" and "V–8 Air Freshener." Laboratory

161 A.3d 198

testing performed for the Commonwealth by Michael Coyer, PhD—a forensic toxicologist and the Commonwealth's eventual expert witness—revealed that these products contained the chemical PB–22, which the prosecution alleged to be either a controlled substance as an "analogue" of the known synthetic cannabinoid JWH–018,1 or a designer drug. On July 15, 2013, the police executed search warrants at Appellee's residence and business. At each location they seized additional packets of substances containing PB–22. Appellee was charged, under the Controlled Substance, Drug, Device and Cosmetic Act (the "Act"),2 with three counts of delivery of a controlled substance, one count of possession with intent to deliver a controlled substance, and one count of possession, or possession with intent to distribute, a designer drug. See 35 P.S. § 780–113(a)(30), (36).3

Before describing the procedural history, it is helpful to review the legislation, including a material revision made in early July 2013, between the second and third undercover purchases. See Act of July 2, 2013, P.L. 242, No. 40 ("Act 40"). In relevant part, the Act defines a controlled substance as a substance listed in Schedules I through V of the Act. See 35 P.S. § 780–102.4 These are known as "scheduled" drugs. See, e.g. , 40 P.S. § 908–1. It defines designer drug as "a substance other than a controlled substance that is intended for human consumption and that either has a chemical structure substantially similar to that of a controlled substance in Schedules I, II or III ... or that produces an effect substantially similar to that of a controlled substance in Schedules I, II or III." 35 P.S. § 780–102.5 The schedules are set forth in the Act, see 35 P.S. § 780–104, although only Schedule I is relevant to this dispute.6

161 A.3d 199

Act 40 amended the description of Schedule I. In both the pre-and post-amendment timeframes, Schedule I included JWH–018 by name as a synthetic cannabinoid. See 35 P.S. § 780–104(1)(vii)(4) (2011); id. § 780–104(1)(vii)(2)(B) (2013). In the pre-amendment version, Schedule I encompassed all "analogues" of the named synthetic cannabinoids. See 35 P.S. § 780–104(1)(vii) (2011) (subsuming within Schedule I "[s]ynthetic cannabinoids or any material, compound, mixture or preparation which contains ... the following substances, including their analogues ...: ... (4) JWH–018"). With the Act 40 revisions, Schedule I now encompasses compounds which are synthetic cannabinoids falling into thirteen specified "chemical designations," as well as analogues of those compounds. Thus, Schedule I now includes:

Synthetic cannabinoids, including any material, compound, mixture or preparation that is not listed as a controlled substance in Schedules I, II, III, IV and V, ... which contains any quantity of the following substances [or] their ... analogues, ... whenever the existence of these ... analogues ... i[s] possible within the specific chemical designation ...

35 P.S. § 780–104(1)(vii) (2013) (emphasis added).7 Only the second specified chemical designation is potentially relevant to this matter:

2. Naphthoylindoles or any compound containing a 3–(–1–naphthoyl) indole structure with substitution at the nitrogen atom of the indole ring whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent. This shall include the following: ... (B) JWH–018....

Id. § 780–104(1)(vii)(2)(B) (2013).8 Notably, the Act has never provided a definition of "analogue" or, for the designer-drug provision, "substantially similar."

Appellee filed an omnibus pre-trial motion which included a request for habeas corpus relief. See Commonwealth v. Hock , 556 Pa. 409, 414–15 & n.2, 728 A.2d 943, 945 & n.2 (1999) (noting that a pre-trial habeas petition tests whether the Commonwealth's evidence is sufficient to make out a prima facie case of guilt). Appellee

161 A.3d 200

made several discreet assertions in support of his habeas request.

First, he argued that both controlled-substance charges relating to dates after July 2, 2013—i.e. , the third delivery count and the possession count—should be dismissed because PB–22 is not a controlled substance under the revised Schedule I. Appellee reasoned that JWH–018 is a naphthoylindole, whereas PB–22 is an ester.9 As the two compounds fall into different structural classes, Appellee maintained, PB–22 could not be an analogue of JWH–018 for purposes of the amended Section 780–104(1)(vii), given that that version expressly classifies prohibited synthetic cannabinoids by "specific chemical designation." 35 P.S. § 780–104(1)(vii) (2013). In this regard, Appellee proffered that the statutory phrase, "within the specific chemical designation," id. , should be understood to mean that the purported analogue must fall into the same structural classification. See Omnibus Pretrial Motion at 2–3. Notably, Appellee did not challenge the constitutional validity of the analogue provision in the revised statute.

Appellee also advanced that the sole designer-drug charge should be dismissed for two reasons. First, he argued that the Commonwealth failed to offer any evidence that PB–22 has a chemical structure which is substantially similar to that of JWH–018, and that the Commonwealth's own evidence, including Dr. Coyer's lab reports, indicated that the physiological and toxicological properties of PB–22 are unknown—thus negating any claim that its effects are substantially similar to those of JWH–018. See Omnibus Pretrial Motion at 5. Alternatively, Appellee argued that the term "substantially similar" was void for vagueness as applied to the two compounds in question. See id.

Finally, Appellee argued that, in the relevant scientific field, there is no consensus as to the definition of an "analogue" of a chemical compound, nor is there a generally-accepted methodology for determining whether one molecule is an analogue of another. As applied to this case, Appellee reasoned that, if scientists cannot agree on whether PB–22 is an analogue of JWH–018, the average citizen could not be on notice of such a relationship between the two chemicals and, therefore, that PB–22 is an illegal drug. That being the case, Appellee continued, it would offend due process, under the void-for-vagueness doctrine, for the Commonwealth to prosecute him under subsection 780–113(a)(30) for delivering PB–22 as an alleged controlled substance in the pre-July 2, 2013, timeframe. See id. at 3–4.10

161 A.3d 201

To summarize, then, Appellee made three essential contentions: (1) that Section 780–104(1)(vii) was vague as applied to PB–22 before July 2, 2013; (2) that PB–22 was not a prohibited substance under Section 780–104(1)(vii) after July 2, 2013; and (3) that the designer-drug provision, Section 780–113(a)(36), could not validly be applied to PB–22. Because subsection (a)(36) predicates culpability in the disjunctive on a substantially similar effect or chemical structure, this latter argument had two subparts: (a) since PB–22's effects were unknown, they could not possibly be proved to be substantially similar to those of JWH–018; and (b) either the Commonwealth did not satisfy its burden to demonstrate that PB–22 and JWH–018 shared a substantially similar chemical structure, or the term "substantially similar" was vague as applied to the structures of those two chemicals.

The common pleas court held a hearing on the habeas motion at which Dr. Coyer testified as an expert for the Commonwealth and two expert witnesses testified on behalf of Appellee. Dr. Coyer opined, to a reasonable degree of scientific certainty, that PB–22 is an analogue of JWH–018. See N.T., Nov. 7, 2014, at 35. He conceded, however, that there was no definition of "analogue" in the relevant scientific field, but that he considered the term to mean a compound which "has a similar structure but may possess different properties." Id. at 36. In terms of methodology, Dr. Coyer indicated that he used a four-part process to arrive at this type of expert opinion: he visually compared two-dimensional diagrams of the molecules in question; he compared their potency or function; he reviewed his colleagues' unpublished reports, anecdotal evidence, and peer-reviewed articles, if any; and he drew upon his experience conducting chemical analyses in his capacity as a forensic toxicologist. See id. at 40–42. However, Dr. Coyer was unable to identify any peer-reviewed articles suggesting that his methodology was a generally-accepted means for determining whether one compound is an analogue of another. Finally, he clarified that his method did not employ a comparison of three-dimensional molecular...

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